Final Order 1

Order Details: Copy  of Judgment
Pdf Text: Judgment - 1 - C. C. No. 2695/PW/2018
C/S filed on : 29/09/2018
Decided on : 23/08/2023
Duration :04 Y, 10 M & 25 D
Exh. 19
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
10TH COURT, ANDHERI, MUMBAI.
(PRESIDED OVER BY R. M. SHAIKH)
C.C.No. 2695/PW/2018
(MECR No. 04/2017)
JUDGMENT UNDER SECTION 355 OF THE CODE OF CRIMINAL
PROCEDURE.
(a) The serial number of the case. : C. C. No. 2695 / PW / 2018.
(b) The date of the commission of
the offence.
: 13/03/2017
(c) The name of the Informant. : The State (D. N. Nagar Police
Station in MECR No.4/2017,
Through Sandip Ashok
Gaikwad)
(d) The name of the accused
person and their parentage
and residence;
: 1) Vinod Mohanlal Mehta
Age : 67 years, Occ :Business
R/o: 11, Vishwabharati Co-op
Housg. Society, Flat No.14,
Third Floor, V. P. Road, Andheri
(W), Mumbai.
2) Talakshi Premji Shah.
Age : 53 years, Occ : Business
R/o: 101/102, Shreeji
Apartment, J.P.Road, Andheri
(W), Mumbai.
(e) The offence complained of : Under Sections 418 r/w 34 of
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Judgment - 2 - C. C. No. 2695/PW/2018
Indian Penal Code r/w 63, 69 of
Copyright Act.
(f) The plea of the accused and
their examination.
: Accused pleaded not guilty.
(g) The final order : Accused are acquitted.
(h) The date of such order : 23/08/2023.
(i) Brief statement of reasons : As recorded herein below.
Assistant Public Prosecutor : Shri. Shah
Advocate for the accused : Shri. D. H. Shukla.
JUDGMENT
1. Accused are facing trial for the offences punishable under
Sections 418 r/w 34 of Indian Penal Code r/w 63, 69 of Copyright Act.
2. In order to prove the guilt of accused, prosecution has
examined in all three witnesses including PW1 Sandip Ashok Gaikwad
at Exh.11, PW2 Atmaram Vishram Salunkhe at Exh.15 and PW3
Shekhar Bhalerao at Exh.17 came to be recorded. The statement of
accused under section 313 of the Code of Criminal Procedure is
recorded at Exh.18 wherein they took defence of false implication in the
case. Heard, Ld. APP for the State and Ld. Advocate for the accused.
Perused the oral and documentary evidence brought on record.
3. On perusal of evidence of prosecution witnesses, it appears
that, PW1 Sandip Ashok Gaikwad, is the informant of this case who
deposed that, in the year 2017 he was working in Novex
Communication Pvt. Ltd. as field officer. On 13/03/2017 at Andheri
Recreation Club there was programme of Dhuliwandan one sales
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Judgment - 3 - C. C. No. 2695/PW/2018
representative Mr. Atmaram Salunkhe attended that programme. The
songs of Yash Raj films Pvt. Ltd. were playing there and the rights of
said songs were registered with them. The song of ‘Befikre’ movie
namely ‘Nashesi Chadh Gai’ was playing there. Atmaram recorded the
video while the song was playing and he prepared the DVD of same and
handed over to him. Thereafter, PW1 lodged complaint to D.N. Nagar
police station and proved FIR at Exh.12. His authority letter to lodge the
complaint is marked at Article ‘A’. He has given copy of agreement of
Yash Raj films with their company to police which are marked at Article
‘B’ and ‘C’. On the basis of CD given by Atmaram Salunkhe and
documents, he lodged complaint against accused. He identified CD
which is marked as Article ‘D’. He has not seen the accused but given
the complaint only in their names.
4. During his cross-examination conducted on behalf of
accused it is brought on record that, Mr. Atmaram Salunkhe is not the
member of Andheri Recreation Club. He also stated that, he has not
given any documents to show that, the rights of said songs were
reserved to the said company. He admitted he do not having any
personal knowledge regarding the programme and incident and he
never visited the Andheri recreation Club. He also stated that, seized CD
was not forwarded by police scientific examination in Forensic Lab and
he has also not annexed any report of expert to show authentication of
CD.
5. Another witness examined by prosecution PW2 Atmaram
Vishram Salunkhe deposed that, on 13/03/2017 he visited Andheri
Recreation Club at about 10.00 a.m. to attend the programme of Holi
on instruction of his boss Mr. Ketan Kanakiya. That time he was serving
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Judgment - 4 - C. C. No. 2695/PW/2018
in Novex Pvt. Ltd. as Sr. Sales Manager. He was instructed by his boss
Ketan Kanakiya to record the songs if any belonging to their company.
That time they were having agreement with Zee and Yash Raj company.
He has recorded song in his mobile of Zee music and Yash Raj company
which was played there. On the next day he went to his office and
prepared DVD and handed over to the informant. He has produced his
affidavit u/Sec. 65-B of Indian Evidence Act which is marked at Exh.16
and the DVD is placed on record as Article ‘D’.
6. During his cross-examination it is brought on record that,
he do not recollect that, he has stated to police that, on instruction of
his boss he went to Andheri Recreation Club. He stated that, he is not
member of that club and admitted that, except member no one can
enter in the club. He was having pass of the club which is not given to
police. He has no evidence to say that, the songs were played in the said
club by any instrument. He has deposited his mobile with police. Rest of
the cross-examination is that of denial.
7. Last witness examined by the prosecution PW3 Shekhar
Bhalerao, Senior PI of D.N. Nagar police station who deposed that, on
20/11/2017 he was attached to D.N. Nagar police station as PI and
registered FIR in this case vide MECR No. 04/2017 which at Exh.12. He
conducted the investigation and verified the contents of CD given by
informant. He prepared spot panchanama which is marked at Exh.13.
He recorded statement of witnesses and identified Article ‘A’, ‘B’, ‘C’ and
‘D’.
8. During his cross-examination he stated that, no documents
showing registration of said songs under patent with Government were
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Judgment - 5 - C. C. No. 2695/PW/2018
given to him. He admitted that, he has not given any documents to
show that, said songs are registered with Government. The witness PW2
Salunkhe has not furnished any entry pass showing his presence in such
programme and he has not also collected any such proof. He has not
seized the mobile of PW2 Salunkhe on which he recorded song. He has
not prepared any panchnama regarding correctness of CD and he was
unable to explain why the CD is not submitted at the time of filing
charge-sheet. He has not also given any proof to show that accused
were the organizer of said programme and he has not recorded
statement of any independent witnesses.
9. On perusal of entire evidence, adduced by the prosecution,
it appears that, the prosecution has examined in all three witnesses, out
of which PW1 has stated that, he has not given any documents to show
that, the rights of disputed songs are reserved with their company and
he do not have any personal knowledge regarding the programme and
incident. He has not visited the Andheri Recreation Club. Therefore, his
testimony is not helpful to prove the charges against accused. Another
witness PW2 stated that, he is also not member of Andheri Recreation
Club and he has not produced his mobile before police in which
recording was done. Therefore, in absence of production of his mobile,
the prosecution can not prove the recording of song through his mobile
which was then transferred/prepared on DVD.
10. The last witness is the Investigating Officer whose
investigation is having lacuna in respect of producing documents for
registration of song or that PW2 was present in the programme and
that accused Nos. 1 and 2 were the organizer of the event where the
song was played. Therefore, the prosecution has utterly failed to prove
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Judgment - 6 - C. C. No. 2695/PW/2018
that, on 13/03/2017 at Andheri Recreation Club, Mumbai both the
accused in furtherance of their common intention played sound
recording/songs of Zee company for public performance without any
permission or license of the informant company and thereby infringed
the provisions of Copy Right Act and caused wrongful loss to the
informant company. As such both the accused are entitled to be
acquitted. In the result, I proceed to pass passing following order -
ORDER
i Accused No. 1) Vinod Mohanlal Mehta and
accused No. 2) Talakshi Premji Shah are acquitted of
the offences punishable under Sections 418 r/w 34 of
Indian Penal Code r/w 63, 69 of Copyright Act vide
Section 248 (1) of the Code of Criminal Procedure.
ii Bail bonds of accused stand cancelled.
iii Seized muddemal i.e. DVD being worthless be
destroyed after appeal period.
iv The accused shall furnish bonds of Rs.10,000/-
each under section 437(A) of the Code of Criminal
Procedure.
(Pronounced in open Court)
Sd/-
(R. M. Shaikh)
Metropolitan Magistrate,
Dt. 23/08/2023 10th Court, Andheri, Mumbai.
Dictated on : 23/08/2023
Transcribed on : 23/08/2023
Signed on : 23/08/2023
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